AOL LLC v. www.DOMAINBONANZA.COM
Claim Number: FA0707001030840
Complainant is AOL LLC (“Complainant”), represented by Blake
R. Bertagna, of Arent Fox LLP,
REGISTRAR
AND DISPUTED DOMAIN NAME
The domain name at issue is <americaonlinemortgage.com>, registered with GoDaddy.com, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 10, 2007; the National Arbitration Forum received a hard copy of the Complaint on July 11, 2007.
On July 11, 2007, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <americaonlinemortgage.com> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On July
13, 2007, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
August 2, 2007
by which Respondent could file a response to the Complaint, was transmitted to
Respondent via e-mail, post and fax, to all entities and persons listed on
Respondent's registration as technical, administrative and billing contacts,
and to postmaster@americaonlinemortgage.com
by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 6, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s
<americaonlinemortgage.com>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <americaonlinemortgage.com> domain name.
3. Respondent registered and used the <americaonlinemortgage.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, AOL LLC, is one of the world’s largest and most
well-known online service providers with millions of subscribers
worldwide. Complainant has conducted
business under its
Respondent registered the <americaonlinemortgage.com> domain name on September 12, 2004. Respondent’s domain name previously resolved to a website offering mortgage and other financial services in direct competition with Complainant. The disputed domain name is currently suspended by the registrar due to a failure to provide correct contact information. In addition, Respondent is currently offering the <americaonlinemortgage.com> domain name for sale, along with several other domain names, on its website located at the <domainbonanza.com> domain name.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Under Policy ¶ 4(a)(i), Complainant
must show that it has rights in the
Respondent’s <americaonlinemortgage.com>
domain name is confusingly similar to Complainant’s AMERICA ONLINE mark, as
it incorporates the entire mark and simply adds the descriptive term “mortgage”
onto the end of the mark, which does not negate any confusing similarity under
the Policy. Moreover, the addition of
the generic top-level domain “.com” to Complainant’s mark is irrelevant, as a
top-level domain is a required element of all domain names. Thus, the Panel finds that the <americaonlinemortgage.com> domain
name is confusingly similar to Complainant’s
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the <americaonlinemortgage.com> domain name. Under Policy ¶ 4(a)(ii), Complainant has the initial burden of showing that Respondent lacks rights and legitimate interests in the disputed domain name. However, once Complainant has made a prima facie case, the burden shifts to Respondent to prove that it does have rights or legitimate interests in the name. In the present case, the Panel finds that Complainant has established a prima facie case under the Policy. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s failure to answer the Complaint allows the Panel to infer that Respondent lacks rights and legitimate interests in the <americaonlinemortgage.com> domain name. See Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint). Nevertheless, the Panel will still examine the record to determine if Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant alleges that Respondent is not commonly known by
the <americaonlinemortgage.com> domain
name, which indicates that Respondent lacks rights and legitimate interests in
the name under Policy ¶ 4(c)(ii). The Panel agrees, as there is no evidence in
the record to suggest that Respondent is known by the disputed domain
name. In addition, Respondent’s WHOIS information,
which indicates that Respondent is “www.DOMAINBONANZA.COM,” does not suggest
that Respondent is commonly known by the <americaonlinemortgage.com>
domain name. Furthermore, Respondent
is not authorized by Complainant to use the
Respondent’s <americaonlinemortgage.com> domain name previously resolved to Respondent’s website offering mortgage services in direct competition with Complainant. The Panel presumes that Respondent profits financially when Internet users take advantage of the services offered on this website. Such use does not qualify as a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services).
In addition, Respondent’s general offer to sell the <americaonlinemortgage.com> domain
name on its website also indicates that Respondent lacks rights and legitimate
interests in the disputed domain name under Policy ¶ 4(a)(ii). See
Mothers Against Drunk Driving v. Hyun-Jun Shin, FA 154098 (Nat. Arb. Forum
May 27, 2003) (holding that under the circumstances, the respondent’s apparent
willingness to dispose of its rights in the disputed domain name suggested that it lacked rights or legitimate
interests in the domain name); see also
Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding
the respondent’s conduct purporting to sell the domain name suggests it has no
legitimate use).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Complainant also contends that Respondent registered and is using the <americaonlinemortgage.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). As mentioned previously, Respondent’s disputed domain name redirected Internet users to a website offering mortgage services in direct competition with Complainant. This constitutes a disruption of Complainant’s business and qualifies as bad faith registration and use under Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business); see also EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc., FA 94385 (Nat. Arb. Forum July 7, 2000) (finding that the minor degree of variation from the complainant's marks suggests that the respondent, the complainant’s competitor, registered the names primarily for the purpose of disrupting the complainant's business).
The Panel presumes that Respondent benefited commercially
when Internet users were redirected to its competing website at the <americaonlinemortgage.com> domain
name, which is confusingly similar to Complainant’s
Furthermore, Respondent’s offer of the <americaonlinemortgage.com> domain name for sale on its website located at the <domainbonanza.com> domain name further indicates that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(i). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”); see also Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding that the attempted sale of a domain name is evidence of bad faith).
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <americaonlinemortgage.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: August 16, 2007
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum